Bradley K. Weiner M.D. v. Patrick Lashford Appeal from 61st District Court of Harris County (dissenting memorandum opinion)
Annotate this Case
Download PDF
Reversed and Remanded and Memorandum Majority and Dissenting Opinions filed July 27, 2023. In The Fourteenth Court of Appeals NO. 14-21-00289-CV BRADLEY K. WEINER M.D., Appellant V. PATRICK LASHFORD, Appellee On Appeal from the 61st District Court Harris County, Texas Trial Court Cause No. 2020-18756 DISSENTING MEMORANDUM OPINION I respectfully dissent from the majority opinion, which concludes the expert report provided by Lashford is inadequate. The purpose of the Texas Medical Liability Act is to expeditiously eliminate frivolous health-care liability claims while preserving meritorious claims. In setting out the expert’s opinions in support of a health care liability claim, the expert’s report must provide enough information to fulfill two purposes: first, it must inform the defendant of the specific conduct the plaintiff has called into question, and second, it must provide a basis for the trial court to conclude that the claims have merit. Tex. Civ. Prac. & Rem. Code Ann. § 74.351; Baty v. Futrell, 543 S.W.3d 689, 693 (Tex. 2018), Cornejo v. Hilgers, 446 S.W.3d 113, 120 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (citing Scorseby v. Santillan, 346 S.W.3d 546, 555–56 (Tex. 2011)). To provide a fair summary of causation, the expert report must explain how and why the physician’s or health care provider’s breach caused the plaintiff’s injury. Naderi v. Ratnarajah, 572 S.W.3d 773, 781 (Tex. App.—Houston [14th Dist.] 2019, no pet.). The report must address all the elements; omissions may not be supplied by interference. Scorseby, 346 S.W.3d at 556. To satisfy the “how and why” requirement, the expert need not prove the entire case or account for every known fact; the report is sufficient if it makes “a good-faith effort to explain, factually, how proximate cause is going to be proven.” Naderi, 572 S.W.3d at 781 (quoting Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017)). Here, the amended expert report did not, as the majority concludes, “fail to describe an injury Weiner caused.” To the contrary, the expert report outlined the three conditions required for the L5/S1 interlaminar fusion procedure to be medically necessary: instability, malalignment, or the need for extensive decompression, which the expert determined after review of Lashford’s medical records were not conditions exhibited by Lashford prior to the interlaminar fusion procedure performed by Weiner. The expert clearly states in his amended report that the performance of an “unwarranted and inappropriate surgery” was a breach of the standard of care. He further opined that during the course of “performing an unwarranted and inappropriate surgery,” Weiner decorticated Lashford’s spine, 2 resulting in injuries to Lashford: “It is my opinion to a reasonable degree of medical certainty, that the breach in the standard of care by Dr. Weiner has resulted in pain, the need for ongoing medical care, and physical limitations to Mr. Lashford, which can be expected to continue into the future.” Moreover, the expert detailed Weiner’s attempted spinal fusion at L5/S1, placement of an “experimental” medical device at L5/S1 (with this interspinous spacer later found free-floating in soft tissue), and removal of Lashford’s interspinous ligaments connecting L5/S1. I have found no authority requiring an expert report under section 74.351 to determine the exact nature and extent of damages at the prelitigation stage of a medical malpractice claim, nor is it a statutory requirement; rather, as here, the breach of the standard of care must be linked to the existing harm. This is not a report that is ipse dixit, based merely on the expert’s “say so.” See Baylor Coll. of Med. v. Davies, 599 S.W.3d 323, 329–30 (Tex. App.—Houston [14th Dist.] 2020, no pet.). The majority further concludes “The report provided no explanation for how or why the surgery resulted in pain, medical care, or physical limitations beyond what Lashford would have experienced with no medical intervention for the condition that Lashford already suffered from.” Quoting an opinion from the El Paso Court of Appeals, the majority further avers, “Any recovery for pain and suffering in a medical malpractice case is limited to the additional pain and suffering caused by the improper medical treatment; recovery is not allowed for the normal pain that would have been experienced as part of proper treatment.” Tenet Hosps. Ltd. v. Bernal, 482 S.W.3d 165, 170 (Tex. App.—El Paso 2015, no pet.). However, we review the expert report in its entirety, not piecemeal, as the majority suggests. The expert’s report describes the additional surgeries Lashford had to undergo because of Weiner’s unwarranted and inappropriate surgery (the 3 need for ongoing medical care). It also includes symptoms and clinical findings that were first articulated after the attempted spinal fusion surgery, including left leg pain, persistent disc material left at L5/S1, and an affected nerve root at S1: ; persistent left leg pain: and the lack of fusion of the vertebrae at L5/S1: As noted above, one doctor, whose records the expert reviewed, also recommended a bilateral L5/S1 rhizotomies (a procedure to remove sensation from painful nerves to treat on-going pain). The majority’s opinion thus subverts the purpose of the act—to reduce purported frivolous lawsuits, see Scoresby, 346 S.W.3d at 553, and instead sweeps aside Lashford’s non-frivolous claims despite the good faith effort of his expert. The trial court did not abuse its discretion in denying Weiner’s motion to dismiss. For these reasons, I dissent from the majority, and would affirm the order of the trial court denying Weiner’s motion to dismiss. 4 /s/ Margaret “Meg” Poissant Justice Panel consists of Justices Wise, Poissant, and Wilson. (Wise, J. Majority). 5
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
